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2013 DIGILAW 721 (HP)

NARESH KUMAR v. RAJINDER SINGH

2013-08-07

A.M.KHANWILKAR

body2013
JUDGEMENT A.M.KHANWILKAR, J. - 1. HEARD counsel for the parties. 2. THE two Courts below have concurrently found that the appellant has failed to prove that the agreement, dated 26th April, 1982, was an out and out sale in his favour. The trial Court as also the First Appellate Court in paragraph 15 of the impugned judgment has dealt with this contention and has, in my opinion, rightly noted that mere exhibiting the document in the previous suit does not result in proving the document and, in particular, contents thereof. That evidence is lacking and, therefore, it was held that the appellant did not prove the agreement, dated 26th April, 1982. No fault can be found with the said opinion taken by the two Courts below. 3. THE second question that was dealt with by the First Appellate Court at the instance of the appellant is whether the appellant had proved adverse possession. Even this contention stands answered in the discussion found in paragraph 16 of the judgment under appeal. The Court has noted that the sale deed in favour of the respondent, dated 27th November, 1995, was brought on record in the previous suit between the parties on 15th December, 1995. The appellant did not take necessary steps much less to file suit for specific performance of agreement, dated 26th April, 1982, executed in his favour and the plea of adverse possession was taken only in August, 2007. 4. IT is not possible to countenance the argument of the appellant that Article 54 of the Schedule of the Limitation Act, 1963, will have no application to the fact situation of the present case. It is indisputable that the sale deed in favour of the respondent came to the notice of the appellant in the year 1995 in the previous suit, which is clear notice of refusal to perform the agreement in favour of the appellant giving rise to cause of action and the limitation would, thus, commence from that date and would run for the next three years. As no steps were taken by the appellant to file suit within that time for specific performance of the agreement and for declaration that the sale deed in favour of the respondent was not binding on the appellant, no fault can be found with the view taken by the two Courts below. No substantial question of law arises. As no steps were taken by the appellant to file suit within that time for specific performance of the agreement and for declaration that the sale deed in favour of the respondent was not binding on the appellant, no fault can be found with the view taken by the two Courts below. No substantial question of law arises. Hence, dismissed, so also the pending application(s), if any.